So according to you it is sane for Padilla to work for KSM, the man who conceived, planned, and commanded the 9/11 attack and to agree to come to the US and blow up apartment buildings and kill thousands of American men, women, and children in their sleep. It is insane for him to now feel remorse for his prior actions.

Are you a fool? Take this simple test. Read a history book about Joseph McCarthy. Say "ah, those people were so foolish to believe you could simply call someone a communist and believe they were guilty and dangerous."

Now check to see if you believe simply calling someone a terrorist makes them guilty. Do you believe this? Yes? Congratulations, you are a fool.

Padilla was convinced he had signed a pledge not to reveal what had happened in the Navy brig where he was held from 2002 to 2005...Padilla believed that "if he speaks about what went on in the brig, something terrible might happen."

Yet, they also claim that Padilla provided them with a laundry list of alleged torture he underwent in the brig, including:

...sleep deprivation, extreme heat and cold, threats of execution, exposure to noxious fumes, and was forced to wear a hood and stand in one position for extended periods of time. His lawyers also claim he was given "truth serum" in the form of LSD or PCP during his detention in a military prison.

Therefore, we are left with a conundrum:

Did the defense lawyers and their psychs fabricate the claim that Padilla is refusing to let them know what happened to him in the brig or are they fabricating the claim that Padilla provided them with the detailed laundry list of tortures he allegedly underwent at the hands of the Gestapo... er Navy in the brig.

This kind of lying makes the rest of us in the defense bar look bad. At least get your lies straight people!

Padilla was, on the facts with which we are presented, "armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States." Id. at 21.Padilla eventually escaped to Pakistan, armed with an assault rifle. Id. at 20-21. Once in Pakistan, Padilla met with Khalid Sheikh Mohammad, a senior al Qaeda operations planner, who directed Padilla to travel to the United States for the purpose of blowing up apartment buildings, in continued prosecution of al Qaeda’s war of terror against the United States. See id. at 22. After receiving further training, as well as cash, travel documents, and communication devices, Padilla flew to the United States in order to carry out his accepted assignment. Id. at 22-23.

Of course in context "For purposes of Padilla’s summary judgment motion, the parties havestipulated to the facts as set forth by the government." It is just that there has never been another set of facts presented in any court. All we have is this type of summary of what Padilla himself said to interrogators.

Which again raises the question, if you insist that Padilla is insane if he "identifies with his military captors" then presumably you regard it as sane for him to continue to identify with al Qaeda. Personally, I think it is healty when a Traitor begins to think of himself as an American again.

"Personally, I would question the mental capacity of someone that identified with people that beat, drugged, interrogated, etc. etc. for 3 years or so."

Remarkable. I would think most people would consider the simplest explanation, that he wasn't mistreated and is identifying with people who carefully cultivated a bond with him (admittedly for the purpose of manipulating him). You abuse someone if you want them to do something they don't want, like North Vietnamese trying to get airmen to sign a statement admitting to war crimes. Padilla was held because he had direct contact with and vital information about KSM and other members of his support cadre. Now force might be useful to extract one piece of information from a reluctant subject, but everything we know about Padilla indicates that he cracked almost immediately and told the FBI everything he could think of. The next year or so was spent trying to coax additional details out of what everyone has characterized as a willing witness. About the last thing you would do in this case is to administer drugs, particularly ones that confuse the mind. In fiction they may hypnotize someone to extract extra details, but in Padilla's case they simply gave him nothing else to think about except the questions they had asked him.

This may have been mind numbingly boring to Padilla, but it isn't torture or any violation of the rights of an unprivileged belligerent. Furthermore, this was an actual case of the "ticking bomb" because KSM was responsible for 9/11, tried it again with Padilla, and would continue to threaten American lives until they gathered enough information from sources like Padilla to catch him. In that context, the psychological pressure used during interrogation was both legal and justified.

Some of the commentators on here are only one or two steps away from believing it is necessary to build concentration camps. You follow and believe what the government tells you without question, you rationalize human rights violations and you believe our symbol as a once shining beacon to others - of freedom, civil rights and the word of law... means nothing.

You believe that you are free, but you have given up your own freedom so quickly it is shocking, in trade you received permission to point your anger somewhere, anywhere, at another person or group.

I guess you are going to have to explain where the lie is as the two excerpts you provide are in no way mutually exclusive.

You are going to have to explain how you arrive at that conclusion.

To my mind, either Padilla can and did give his attorneys the detailed description in his filings of every alleged "torture" performed on him in the brig or he was too "mentally ill" to cooperate in his defense and tell his attorneys what was done to him in the brig as alleged by the psychiatrist.

"Exactly when does an American citizen have the right to challenge being detained? On what authority do you rely?"

In ex parte Quirin, the Supreme Court made it clear that a citizen can become an unlawful belligerent by doing what Padilla did. "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." The same decision made it clear that POWs and unlawful belligerents are subject to military detention. "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention" In conjunction with the previous statement, this means that citizens are subject to military detention the same as non citizens if they, as Padilla did, enlist in armed forces at war with the US and, on a military mission under orders from their commanding officer, attempt to enter the US pretending to be civilians while actually on a military mission of sabotage.

Quirin did not establish when or how a citizen who is being held as a captured enemy soldier may challenge this detention in court. However, Padilla did not want for legal representation and his case was in litigation from two days after his transfer until he was released from military custody. The last decision from the 4th Circuit favored the government.

As an enemy soldier, Padilla enjoyed "combatant immunity". Although planning to blow up apartment buildings would be a crime if done by a civilian, when a soldier does the same thing it is simply combat (consider Dresden, Tokyo, Hiroshima). That is why Padilla was not "charged" with what he admitted doing, because he cannot be charged because he is immune from prosecution. He could have been charged with Treason (in civilain court) or as a Spy (in a court martial), but instead the military interrogated him and eventually let him go. Other detainees are being charged in military court with war crimes, which is permitted because combatant immunity does not extend to war crimes and only applies to civilian criminal, not military charges.

Prolonged solitary confinment is probably "cruel and unusual punishment", but Padilla was not being punished for criminal activity. He was an unlawful belligerent (spy) who enjoyed only the minimal protections of the Geneva Convention. He was an interrogated for important intelligence within the boundaries of international law. In this context, his citizenship was irrelevent.

If you actually read the amendments, you will discover that the important ones all apply to civilian criminal proceedings. The right to a lawyer, to a trial, against self incrimination, they all apply to criminal proceedings. A criminal may have the right to remain silent, but a captured soldier may not hide his combatant status. He must give name, rank, and serial number, which is all that is needed to hold him for the duration of the hostilities. There is no conflict here. Padilla is a citizen, and is entitled to remain silent, and is entitled to a lawyer, when charged with a crime. Being an enemy soldier is not a crime, so he had no such rights. But nothing he said can or will be used against him in a court of law, because he was also immune from criminal prosecution for everything he did after enlisting.

However, Padilla could and did challenge his detention in court. This was in the nature of a civil proceeding because he was not being held as a criminal.

If you feel that a citizen should not be deprived of his liberty without some Article III process, then you need to get a law passed that provides that process. Currently there is no proceeding available to bring an enemy soldier who is also a citizen before a court to verify that he is properly held as a military prisoner. It is not a criminal charge nor is it a civil proceeding like committing someone to a metal hospital. The proceeding simply doesn't exist. Asking that Padilla or any other detainee be "charged criminally" is like asking that a bank robber be charged with drug dealing because you prefer that charge even if that is not what they did.

De Palma... To my mind, either Padilla can and did give his attorneys the detailed description in his filings of every alleged "torture" performed on him in the brig or he was too "mentally ill" to cooperate in his defense and tell his attorneys what was done to him in the brig as alleged by the psychiatrist.

This is a poor argument. You are mentally ill, yet you manage to show up in court from time to time and impersonate a defense attorney. Look at Judge Larry Seidlin. He's emotionally disturbed yet he manages to impersonate a Judge in Broward County, Florida. I'm not sure about Howard but I suspect he's just hangs out in a bar and impersonates himself.

1.) I'm reading Quirin for the first time so there's a lot to chew on. Although O'connor's Hamdi opinion seems to question the 'end of hostilities' problem with a GWOT that's supposed to last longer than our lifetimes. Anyway I'll look closer and Quirin.

2. You wrote:Currently there is no proceeding available to bring an enemy soldier who is also a citizen before a court to verify that he is properly held as a military prisoner.

Does John Walker Lindh fall outside of this category? For whatever reason he was not held for very long in military custody and charged in our civilian court system. Is there a significant distinction between Lindh and Padilla where we immediately charge one and not the other?

No, but there is a problem with people who are mishandled and who plead guilty instead of litigating the mistake. Lindh could have asserted combatant status, though doing so would have changed one type of prison for another.

When a US citizen joins an enemy army at war with the US, then he can be charged with the crime of Treason. He has combatant immunity against charges of murder, assault, arson, for what he does in combat. Treason, however, is essentially a criminal charge as to his status. On the other hand, a citizen who joins a foreign army in time of war loses his citizenship (Sec. 349 (a) (3) INA) and once he is no longer a citizen his service is no longer treason.

We are also waiting for the first al Qaeda fighter to give name and rank and assert real POW status. Anyone who disputes his combatant status (in a CSRT for example) cannot be a POW by definition.

Remember, combatant immunity does not apply to a Spy (as the Germans in Quirin) who enters the US and commits a regular crime (al Marri and maybe Moussaoui). Immunity applies to what they did overseas when they were either in uniform or out of sight so it didn't matter what they wore.

"Isn't it usually treated as tantamount to renouncing one's citizenship?"

There are a whole bunch of potential law journal questions that are ignored completely because people would rather talk in the 30 second soundbite of political polemic. This is one of them.

What is al Qaeda? A lot of people have tried to argue that it is an international organization, simply ignoring the fact that it was created in Afghanistan to fight the Russians and remained in Afghanistan until it was pushed across the border by US forces. Today it remains closely associated with the Afghan region and in some sense Waziristan is as much a part of Afghanistan as it is part of Pakistan.

This is important because the text of the law reads: "entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States"

This raises two interrelated questions. Is al Qaeda sufficiently closely tied to Afghanistan as to be "the armed forces of a foreign state". Admittedly al Qaeda forces are foreigners, but so are members of the French Foreign Legion and everyone admits it is part of the French army.

The second question is whether the thrust of this law is that one loses citizenship for a change of loyalty (to another country) or because you fight against US forces. Given that you do not lose citizenship by enlisting as a private soldier in a country at peace with the US (Foreign Legion again), I suspect that you have a hard argument that this is a case of simple renunciation or transfer of loyalty. Belligerency is an essential element. That makes it more than simple renunciation.

I was particularly impressed (distressed) recently when during the al Marri appeal one of the judges started from scratch with the "isn't al Qaeda legally just a bunch of evil people" question. Either the Article III branch can't help relitigating the same questions over and over or it can't make up its mind on the most fundamental of crucial national issues.

By the way, it is two witnesses or confession in open court. That is why you have never and will never find Padilla taking the stand for any purpose, not even to provide testimony about the claim of "abuse" in military custody. It is simply too easy to get him to confess.

Qurin was decided because of a habeas petition, but it was generally not regarded as establishing a right to habeas in future cases. More recent decisions clearly have established such a right.

However, my point wasn't that there was no process to challenge the detention, but rather that there was no process available prior to detention. If you accept that a habeas challenge is the right process, then you cannot complain when the US simply locked Padilla up without a criminal charge and without a trial. You then agree (presumably with Congress which has done nothing about it in the 65 years since Quirin) that the right thing to do is lock him up and let him challenge the action through habeas.

"They turned him over to civilian authorities (because they were about to lose in the SCOTUS)"

The option and evidence to charge Padilla criminally for what he did before he enlisted (before he obtained combatant immunity) was available to the US when Padilla was originally captured. It was available through all the litigation. It would have been available after the US won or lost before the Supreme Court. If the US was afraid of the Court, they could have indited him before the case went to the SCOTUS the first time from the Second Circuit. If they were not afraid of appealing that loss to the Court the first time, why would they be afraid of defending their victory in the Fourth Circuit the second time around.

It is not as if there are another 500 Padillas waiting in the wings. We had one, Hurber[t] Haupt, 65 years ago. We had Padilla. Maybe in another 65 years we will have the next one.

"For purposes of Padilla’s summary judgment motion, the parties have stipulated to the facts as set forth by the government." Therefore, the 4th Circuit assumed, and SCOTUS would have to assume, that Padilla was an enemy combatant who came to the US on a military mission. His lawyers were arguing that even if this was true, under law he had to be released because Congress had not authorized his detention. I do not believe that it is such an obvious slam dunk that SCOTUS would have decided that a defendent who they must assume, for the purpose of the case, came to the US to blow up apartment buildings and kill thousands of Americans on behalf of UBL and KSM must be released because Congress did not authorize his detention with sufficiently explict language.

If there is one commmon thread to the SCOTUS decisions, it has been that detainees deserve a hearing and fair process. Padilla wasn't asking for that. His case assumed that he did what the government said, then claimed that there should be no trial on the evidence or further process, but that he should be immediately released no matter how dangerous he was. SCOTUS might have decided that, but I see no reason to simply assume they were going to.

Qurin was decided because of a habeas petition, but it was generally not regarded as establishing a right to habeas in future cases.

I don't know what you mean by "generally regarded". The language in the case is pretty specific. In any case, we agree that there is such a right.

my point wasn't that there was no process to challenge the detention

I must have misunderstood you, then, when you said "Currently there is no proceeding available to bring an enemy soldier who is also a citizen before a court to verify that he is properly held as a military prisoner."

If you accept that a habeas challenge is the right process, then you cannot complain when the US simply locked Padilla up without a criminal charge and without a trial. You then agree (presumably with Congress which has done nothing about it in the 65 years since Quirin) that the right thing to do is lock him up and let him challenge the action through habeas.

You lost me here. What you say seems internally inconsistent.

The option and evidence to charge Padilla criminally for what he did before he enlisted (before he obtained combatant immunity) was available to the US when Padilla was originally captured. It was available through all the litigation. It would have been available after the US won or lost before the Supreme Court.

Sure, but the Administration took the position that it didn't have to charge him at all. It was that issue which it realized it was going to lose. They charged him precisely in order to avoid a determination of that issue.

If the US was afraid of the Court, they could have indited him before the case went to the SCOTUS the first time from the Second Circuit. If they were not afraid of appealing that loss to the Court the first time, why would they be afraid of defending their victory in the Fourth Circuit the second time around.

Because the issues were different. When the case came up from the Second Circuit, the issue was whether that court had jurisdiction. When it came up from the Fourth Circuit, jurisdiction was a given and the issue, as I said above, was whether Padilla could be held indefinitely without charge. The government could afford to lose the jurisdiction issue. It couldn't afford to lose the substantive one; hence the dishonest behavior which caused even Michael Luttig to criticize its actions.

I do not believe that it is such an obvious slam dunk that SCOTUS would have decided that a defendent who they must assume, for the purpose of the case, came to the US to blow up apartment buildings and kill thousands of Americans on behalf of UBL and KSM must be released because Congress did not authorize his detention with sufficiently explict language.

You have 400 years of history against you. The government has lacked the power of indefinite detention without charge since at least the Petition of Right in 1628.

Padilla wasn't asking for that. His case assumed that he did what the government said, then claimed that there should be no trial on the evidence or further process, but that he should be immediately released no matter how dangerous he was.

No, Padilla's argument was that he needed to be either (a) charged, or (b) released. The government first tried to insist that he need NOT be charged, then finally did charge him when it became obvious it would lose. To make matters worse, the actual charges against him are now very different from the public claims it made when it was trying to hold him without charge.

Currently there is no proceeding available to the Government to bring an enemy soldier who is also a citizen before a court to verify that he may properly be held as a military prisoner. They must detain him and then he can challenge the detention.

"When the case came up from the Second Circuit, the issue was whether that court had jurisdiction."

That was the secondary issue. Nobody was sure it would be important. In the Cert Petition, the questions were posed as follows:

1. Whether the President has authority as Commander in Chief and in light of Congress’s Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, to seize and detain a United States citizen in the United States based on a determination by the President that he is an enemy combatant who is closely associated with al Qaeda and has engaged in hostile and war-like acts, or whether 18 U.S.C. 4001(a) precludes that exercise of Presidential authority.2. Whether the district court has jurisdiction over the proper respondent to the amended habeas petition.

Until the oral argument, everyone concentrated on the first question.

"The government has lacked the power of indefinite detention without charge since at least the Petition of Right in 1628."

During World War II, the US held hundreds of thousands of POWs in camps in the US and none of them were charged with anything (other than being enemy combatants).

"No, Padilla's argument was that he needed to be either (a) charged, or (b) released."

Right, but since he had combatant immunity for the period in question this was equivalent to a demand that he be released. Immunity means you cannot be charged.

"To make matters worse, the actual charges against him are now very different from the public claims it made when it was trying to hold him without charge." He currently faces charges for acts before he became a soldier (prior to the summer of 2000). During that period he was a US citizen and a civilian and he can be charged criminally. He was held in military custody for subsequently becoming an enemy soldier. During this period he enjoyed combatant immunity and could not be charged criminally.

A guy murders someone and escapes overseas. He joins a foreign army and is captured as a POW. He cannot be charged criminally for anything he did as a foreign soldier, but he can be tried for the pending murder charge that dated back before he enlisted. The fact that he is then charged with murder does not say that the government did anything wrong capturing him and holding him as a POW originally. Same with Padilla.

During World War II, the US held hundreds of thousands of POWs in camps in the US and none of them were charged with anything (other than being enemy combatants).

Sure, but they were given POW status. Padilla wasn't. Among other things, POWs aren't required to give out information and you certainly can't mistreat them.

Right, but since he had combatant immunity for the period in question this was equivalent to a demand that he be released. Immunity means you cannot be charged.

He only had immunity if he was, in fact, a combatant. He was originally arrested in a criminal proceeding. The government then switched gears and ordered him detained as a combatant. He denied that he was; the government has now gone back to its original position and agreed. That's why he can be and is being charged now.

A guy murders someone and escapes overseas. He joins a foreign army and is captured as a POW. He cannot be charged criminally for anything he did as a foreign soldier, but he can be tried for the pending murder charge that dated back before he enlisted. The fact that he is then charged with murder does not say that the government did anything wrong capturing him and holding him as a POW originally. Same with Padilla.

Even if this were correct, and I have issues with it, the original charge against Padilla -- the "Dirty Bomber" -- constituted a war crime for which he could have been charged regardless of his combat status. The fact that the government has now dropped that charge speaks volumes about its good faith.

"He was originally arrested in a criminal proceeding." No he was arrested as a material witness. At the time the US had his enlistment papers but did not know his current status. If he had recently left al Qaeda, he would still have been a valuable source of intelligence, but he would no longer be an enemy combatant. Being a witness is not being charged or even investigated for a crime.

"The government then switched gears and ordered him detained as a combatant. He denied that he was" He has never denied that he was a combatant. Quite the contrary, the government has probably thousands of hours of interrogation going back to his original interview with the FBI in NYC where he not only admits to being a combatant but provides every possible detail of his entire two year period as an al Qaeda soldier. Remember, even in his court cases up to the Supreme Court there is no claim that he is not a combatant.

"the government has now gone back to its original position and agreed. That's why he can be and is being charged now." No, the government continues to claim that Padilla was an enemy combatant. He has been released from military custody. A captured enemy soldier can be relased for many reasons (exchange, parole, medical). In this case he was released to stand trial for a prior criminal act. Geneva specifically provides for POWs to be tried on prior charges after release from military custody.

'the original charge against Padilla -- the "Dirty Bomber" -- constituted a war crime for which he could have been charged regardless of his combat status'This is actually a matter of some concern in the discussion of the MCA. Real international law (as to be distinguished from the MCA) does not define a war crime for training to commit a war crime, or planning to commit one, or even trying to commit one. In real international law, you can only be charged with a war crime if you commit it, and Padilla didn't have a chance to do anything. He was captured trying to enter the country. He could never be charged in the military system for just his intentions.

jktdxHoward the Duck... What is al Qaeda? A lot of people have tried to argue that it is an international organization, simply ignoring the fact that it was created in Afghanistan to fight the Russians and remained in Afghanistan until it was pushed across the border by US forces. Today it remains closely associated with the Afghan region and in some sense Waziristan is as much a part of Afghanistan as it is part of Pakistan.

This is important because the text of the law reads: "entering, or serving in, the armed forces of a foreign state if...

It's difficult to keep your story straight when you just make it up as you go along.

al-Qaeda or al-Qaida or al-Qa'ida is the name given to an international alliance of militant Sunni Islamist organizations established in 1988 by Osama bin Laden.

The United States Department of Defense defines the organization as:

“A radical Sunni Muslim umbrella organization established to recruit young Muslims into the Afghani mujahideen and is aimed to establish Islamist states throughout the world, overthrow ‘un-Islamic regimes’, expel US soldiers and Western influence from the Gulf, and capture Jerusalem as a Muslim city."

This definition was given in response to a request made by Moazzam Begg, who was being held in extrajudicial detention in the Guantanamo Bay detainment camps. Begg was being accused of assisting or being a member of al-Qaeda or the Taliban.

Real international law (as to be distinguished from the MCA) does not define a war crime for training to commit a war crime, or planning to commit one, or even trying to commit one. In real international law, you can only be charged with a war crime if you commit it, and Padilla didn't have a chance to do anything. He was captured trying to enter the country. He could never be charged in the military system for just his intentions.

That's absurd. Padilla was repeatedly denounced as a danger, someone whom it was essential to hold without charge, because he planned to blow up ... well, something, somewhere.

No, the government continues to claim that Padilla was an enemy combatant. He has been released from military custody. A captured enemy soldier can be relased for many reasons (exchange, parole, medical). In this case he was released to stand trial for a prior criminal act. Geneva specifically provides for POWs to be tried on prior charges after release from military custody.

Even Michael Luttig, possibly the most conservative judge in the entire US court system at the time, didn't buy this argument. He wrote that "shifting tactics in the case threatens [the government's] credibility with the courts"."

He has never denied that he was a combatant.

He was never given the legal opportunity to deny it. The habeas petitions assumed the government's allegations were true. That doesn't mean they were.

the government has probably thousands of hours of interrogation going back to his original interview with the FBI in NYC where he not only admits to being a combatant but provides every possible detail of his entire two year period as an al Qaeda soldier.

An uncharitable reader might think you're saying this without much evidentiary support.

It is sad that much has to be expressed to uphold basics like habeas corpus for CITIZENS. The denial to non-citizens is appalling enough, but this is a step into never never land.

And, not just for a select few like Howard here, but the official stance of the executive branch. This is akin to the "meatball surgery" of M*A*S*H* with a few regulars here providing the wisecracks as well vs. the resident Franks.

I look fwd to the day when the obvious is accepted, so we can attack the less than obvious, but still quite essential.

Joe... This is akin to the "meatball surgery" of M*A*S*H* with a few regulars here providing the wisecracks as well vs. the resident Franks.

I look fwd to the day when the obvious is accepted, so we can attack the less than obvious, but still quite essential.

Don't knock parody, satire and plain old ridicule. They are potent weapons. Short of arresting and executing them, (their preferred method), these people are quite hopeless. You can't kill ideas no matter how bad they are. You are kidding yourself if you think you can ever reach these people. The best you can hope for is to relegate them back to the fringe so they may take up running around in the woods again, with guns, waiting for The Rapture or next millenium.